Common Council’s Legislation Committee will consider whether to “accept as complete” Buffalo Green Code’s FGEIS on Tuesday, September 27, 2016 at 2:00 PM.
You won’t find it yet at the City of Buffalo’s official Green Code website. But, five months after the public comment period for the Green Code’s Draft Generic Environmental Impact Statement (DGEIS) ended, the Green Code’s Final Generic Environmental Impact Statement (FGEIS) has been sent by Mayor Byron Brown’s Office of Strategic Planning to the City’s Common Council for its review and acceptance.
The public can get its first glimpse at the FGEIS – the penultimate step in the State Environmental Quality Review Act (SEQRA) process – by going to the Committee on Legislation’s September 27, 2016 agenda and clicking on FGEIS and its related documents.
It is unclear whether the public will be given the opportunity to speak at the September 27th Legislation Committee meeting – although the Head of the Mayor’s Office of Strategic Planning, Brendan Mehaffy, and the City’s Nadine Marrero, are scheduled to speak in support of a resolution in which “the Common Council Accepts the FGEIS as Complete.” So it is imperative to contact David Franczyk, the Legislation Committee’s Chairman, and your own Common Council member IMMEDIATELY if you are concerned about any of the issues that follow: [Their email addresses are: dpridgen@city-buffalo.com; rfontana@city-buffalo.com; dfranczyk@city-buffalo.com; jgolombek@city-buffalo.com; cscanlon@city-buffalo.com; jferoleto@city-buffalo.com; darivera@city-buffalo.com; rwyatt@city-buffalo.com; uwingo@city-buffalo.com.]
I. The FGEIS is NOT, in fact, “complete.”
The Environmental Impact Statement (EIS) for the “Green Code” [officially, the Buffalo Consolidated Development Framework (BCDF)] is “generic,” that is, it is more general than site or project specific EISs. [See 6 NYCRR 617.10.] It is lawful for the City to use a “generic” EIS when considering new development or zoning regulations such as the Green Code when the environmental analysis and data contained in the GEIS is sufficiently detailed to allow the SEQRA Lead Agency – here, the Common Council – and the public to adequately assess the potential adverse environmental impacts of the proposed new regulations and projects allowed pursuant to them.
But here are a number of ways in which the Draft GEIS, and the proposed Final GEIS (which contains little, if any, additional analysis), should not be considered “complete” in its current form:
A. The DGEIS lacks the assessment and information needed to assist the Common Council and the public to determine which neighborhoods would experience a substantial change in character under the proposed Green Code, or to measure the adverse impacts of such change. It is wholly inadequate to state, as expressed at page 74 of the DGEIS, “The land use maps and zoning analysis discussed … above, demonstrate that the BCDF will not radically change the community character in most areas of the City.” The DGEIS falls far short of the requirements set forth in the Final Scoping Document, that is:
A goal of the BCDF is to ensure any new development replaces or builds upon the fabric of existing neighborhoods within the City, and to allow complementary and appropriate future development. The DGEIS will evaluate the impact of the BCDF on the variety of neighborhoods. The DGEIS will compare the existing built environment with the potential future allowed developments focusing on building styles, lot sizes and general land uses.
Residents, taxpayers, and Common Council Members are not told which areas of this city would experience “radical change” under the current proposal, who would benefit from such significant transition, and what mitigation measures are available to protect residents from the adverse impacts of such change.
B. Despite the promise in the Final Scoping Document that, “the DGEIS will evaluate if adoption and implementation of the [UDO] will have adverse impacts to low-income populations,” the DGEIS and FGEIS fail to address a paramount legal and moral issue confronting this city: the extent to which Mayor Brown’s vision for Buffalo – manifested in the “Green Code” – will result in the displacement of low-income, primarily African-American residents from their neighborhoods.
C. The term “environment” is broadly defined in SEQRA to include – not only physical conditions – but also “existing patterns of population concentration, distribution, or growth, and existing community or neighborhood character.” Nearly three decades ago, our State’s highest court, the New York Court of Appeals, in a case called Chinese Staff and Workers Association v. City of New York, 68 NY2d 359 (1986), held that “population patterns and neighborhood character are physical conditions of the environment under SEQRA” and must be given consideration “regardless of whether there is any impact on the physical environment.” The Chinese Staff decision went on to rule that “potential acceleration of the displacement of local residents and businesses” is an effect on population patterns and neighborhood character that must be analyzed pursuant to SEQRA not only for the actual property involved, but for the community in general. And these socio-economic impacts must be considered whether the proposed project may effect these concerns “primarily or secondarily or in the short term or long term.” The DGEIS and FGEIS fail to assess the proposed Green Code’s potential for displacing local residents and businesses in the neighborhoods in and in close proximity to growth areas.
D. The methodology and assumptions utilized in the DGEIS “Build-Out Analysis” (Appendix H, p. 2) are flawed and inadequate to provide meaningful information for the Common Council or the public. For example:
(1) The build-out only considered lands available for development – including “vacant properties and surface lots within the downtown core.” This approach ignores the potential that the developer-friendly Green Code would result in less-dense areas to be demolished (for example, the Fruit Belt residential blocks) and replaced by buildings and projects of greater density, scale, height, etc.
(2) The build-out only considered as-of-right uses, or uses permitted in each zone without the need to obtain a variance. The limited approach fails to take into consideration the proposed Green Code’s unrestrained use of the “special use permit” – the zoning mechanism which places the least burden on an applicant to meet. It also ignores the overwhelming tendency of Buffalo Zoning Board of Appeals [ZBA] to grant variances, whether or not the applicant provides adequate proof to meet the statutory requirements for “area” and “use” variances.
(3) The build-out analysis does not attempt to determine when redevelopment of available lands might occur. This restricted (and, frankly, lazy) approach contrasts with the requirement at 6 NYCRR 617.7(c)(3) of the SEQRA regulations that the significance of a likely consequence of an action be assessed in connection with not only its setting, but also its probability of occurrence, its duration, its irreversibility, its magnitude, and the number of people affected.
(4) Although recognizing that “the city has numerous overlay districts (i.e. “special districts”) to address unique character areas and encompass a portion of one or more zoning districts,” the build-out analysis does NOT consider overlay zoning districts as part of its analysis. This is contrary to the following requirement found in the Final Scoping Document: “The DGEIS will document the differences between the current and proposed zoning ordinances (lot sizes, as of right uses, etc.) including any overlay districts. Inconsistencies will be documented and any adverse impacts to the existing built environment will be identified.” [Emphasis added.]
II. The most important part of a Final EIS – “the lead agency’s responses to all substantive comments” on the Draft EIS – was apparently prepared by the Office of Strategic Planning, not the Common Council Members, insulating our elected officials from the rigors of carefully assessing the public’s concerns.
The proposed FGEIS’ most critical part is the 140 pages of responses to comments made by the public and agencies concerning the Draft GEIS. They are found at pages 24-163 of the FGEIS.
The SEQRA regulations – at 6 NYCRR 617.9(b)(8) – mandate that a final EIS must consist of “the lead agency’s responses to all substantive comments,” and also state that, “The lead agency is responsible for the adequacy and accuracy of the final EIS, regardless of who prepares it.
Each Common Council Member should be asked whether he has read and approved of each and every response contained in the proposed FGEIS. If he is unable to answer affirmatively to both of these questions, he should not vote to accept the FGEIS as complete.
III. SEQRA’s purpose – to protect our environment by requiring a careful consideration of potential adverse impacts, alternatives and mitigation measures – will be thwarted if the current inadequacies in the DGEIS/FGEIS are not corrected.
As I have previously written, the City of Buffalo has all-too-often failed to comply with the letter and spirit of SEQRA. Unfortunately, given the City’s history of non-compliance, adoption of the presently deficient FGEIS will allow the current Administration to completely circumvent the SEQRA review process with impunity.
Pursuant to the SEQRA regulations – at 6 NYCRR 617.10(d) – once a Final Generic EIS is filed, most proposed projects can be approved by a city’s common council, planning board, zoning board of appeals, etc., WITHOUT ANY SEQRA REVIEW. This regulation – which makes developers very happy, and takes significant power away from nearby residents and property owners – is based on the premise that the generic Environmental Impact Statement has “adequately addressed” each and every project that is allowed “by right” under the newly adopted zoning and development regulations.
Buffalo’s environment and, therefore, its residents, will suffer dramatically if the current FGEIS is accepted by the Common Council given the inadequate analysis of environmental impacts in the DGEIS/ FGEIS, the propensity of the City’s planning staff to support virtually any project proposed by a developer, and the “thresholds for further evaluation” contained in the FGEIS [at pages 21 -1 23 of the FGEIS]. These newly added “thresholds” anticipate that no SEQRA review will be conducted for the vast majority of projects and actions not requiring either a rezoning or use variance. Given the Green Code’s expansion of the “by right” uses allowed in residential neighborhoods, and the many, many uses allowed by “special use permit” under the Green Code, City of Buffalo residents will find their voices greatly reduced, and their quality of life adversely impacted by the whims of developers.
Please take immediate action to contact your Common Council Members, and, if possible, attend the September 27, 2016 Legislation Committee meeting at 2 PM, City Hall, 13th Floor, Common Council Chambers.
With All Due Respect,
Art Giacalone
With All Due Respect 